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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Jamel WITHERSPOON, Appellant.

Decided: December 23, 2002

FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Lynn W.L. Fahey, New York, N.Y. (Jay L. Weiner of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Christopher Ronk of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered January 3, 2001, convicting him of attempted robbery in the third degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 18-22, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Elmore, 269 A.D.2d 404, 702 N.Y.S.2d 860).   In any event, the evidence established that the defendant and his accomplice simultaneously converged upon the complainant.   While the accomplice held a gun to the complainant's head and demanded his property, the defendant stood close by.   When the complainant fled, the defendant and his accomplice were observed by police chasing him as the accomplice held a gun to the complainant's back.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt under an accomplice theory of liability beyond a reasonable doubt (see Penal Law §§ 20.00, 110.00, 160.05, 265.01[1];  People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094;  People v. Mejia, 297 A.D.2d 755, 747 N.Y.S.2d 788;  People v. Brown, 230 A.D.2d 919, 647 N.Y.S.2d 19;  cf.  People v. Ortiz, 107 A.D.2d 824, 484 N.Y.S.2d 661).

Contrary to the defendant's contention, the jury must have based its verdict upon an acting-in-concert theory, because it found the defendant guilty of criminal possession of a weapon in the fourth degree although the trial evidence established that he never possessed the handgun.   Accordingly, the defendant's contention that there was insufficient evidence to establish a threatened use of force under an accomplice theory of liability is without merit (cf.  People v. Yarrell, 75 N.Y.2d 828, 552 N.Y.S.2d 557, 551 N.E.2d 1235, revg. for reasons stated in dissent 146 A.D.2d 819, 537 N.Y.S.2d 294).

We decline the defendant's invitation to speculate as to the manner in which the jury reached its verdict.   The weight to be accorded the evidence presented and the resolution of credibility issues are questions primarily to be determined by the trier of fact which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The defendant's remaining contention is unpreserved for appellate review (see People v. Proctor, 79 N.Y.2d 992, 584 N.Y.S.2d 435, 594 N.E.2d 929;  People v. Lynch, 288 A.D.2d 325, 733 N.Y.S.2d 621), and in any event, is without merit.

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